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Title: Organised Vengeance Called “Justice” Author: Pëtr Kropotkin Language: en Topics: history, society Source: Retrieved on March 1st, 2009 from http://dwardmac.pitzer.edu/anarchist_archives/kropotkin/orgveng.html][dwardmac.pitzer.edu]]. Proofread version retrieved on October 3rd, 2019, from [[http://www.revoltlib.com/?id=405. Notes: Freedom Press London
In the year 1837, Adolphe Blanqui (brother of the revolutionary leader
from whom the Blanquists took their name) wrote a book, The History of
Political Economy. He showed in it the importance which economics had in
the history of humanity for the determination of political forms and
also for the building up of current ideas on Right, Morals and
Philosophy. Sixty years ago, Liberals and Radicals concentrated their
thoughts on politics, and were altogether unaware of the new industrial
conditions which were in course of formation out of the ruins of the old
regime. It was from Blanqui’s point of view quite legitimate that in
order to draw attention upon economics and upon the Socialist movement
which was then beginning, he should have gone so far as to build the
whole history upon economics. Some one-sidedness was not to be avoided,
was even perhaps desirable; other factors being under investigation,
already more or less known, he needed not to speak about them, and all
the strength of his argumentation was to be thrown upon the hitherto
unknown factor.
His exaggerations have been pursued by the German school of Social
Democrats, forgetful of all other aspects of the development of society.
In our turn we, the Anarchists, have shown the great importance of that
other factor, the State; and it rests with us to have its bearing upon
society clearly established.
However, while laying stress upon the hierarchical, centralized,
Jacobin, anti-libertarian principles of the State, we are, perhaps, apt
to neglect our criticism of what has been called Justice. This report
has been written with the special desire to draw attention on the origin
of this institution and to invite a discussion which would throw light
upon that subject.
A careful study of the development of society forces upon us the
conviction that State and Justice are two institutions which not only
co-exist in society down the stream of history, but are connected
together by the bond, of cause and effect. Whosoever admits the
necessity of separate, chosen members of society for the special
function of distributing punishments to those who have broken the law,
needs a body which enacts these laws, codifies them, establishes
standards of punishment—needs special schools for teaching the
manufacture and interpretation of laws—needs jails, jailers, police,
hangmen and army—needs the State.
The primitive tribe, always Communist, does not know of any judge:
within the tribe theft, homicide, murder do not exist. Customs are
sufficient to prevent them. But in the very rare cases in which a member
would disregard the sacred rules of the tribe, he would be stoned or
burned to death by the tribe as a whole. Each member of it would throw
his stone or bring his bundle of wood, in order that it should not be
this or that man who has put the culprit to death, but the tribe in its
entirety.
When a member of another tribe has injured someone, then the whole tribe
of the wronged one is responsible for the carrying out of an equal
injury; and the whole tribe of the assailant is responsible, so that any
of its members as opportunity arises may be chosen by any member of the
wronged tribe for the retaliation—according to the principle of life for
life, tooth for tooth, and so on; wounds to be inflicted exactly as they
were received, the grain of corn being the standard of measurement of
each wound.
That is the primeval conception of justice.
Later on, in the village life of the first centuries of our era, the
conception changed. The idea of Vengeance is by and by left aside—very
slowly, of course, chiefly among agricultural populations, still
surviving among the warriors—and the idea of Compensation is developed;
compensation to the wronged man, or to his family or to the tribe. As
the patriarchal family appears, in possession of cattle and of slaves
stolen from other tribes, Compensation takes more and more the character
of Evaluation of the damage done -- the value being different according
to the rank of the wronged one: so much for a slave killed, so much for
a peasant wounded, so much for a chief abused. The scales of valuation
form the first barbarian codes. To fix the amount, the village community
met, the bare facts of the case were ascertained by the inquiry of
jurymen chosen in equal number (6 or 12) by both parties or their
families. The old members of the village or, better still, the bards, to
whose memory the tradition is entrusted, or perhaps outside judges
invited by the community, decide the compensation (simple restitution
for theft) and the fine to the commune or to the gods.
But gradually, during the immigration of different tribes, many free
communities are enslaved. On the same territory live, side by side,
conquerors and conquered. Them come the priest and the bishop, feared
sorcerers, and by and by the jurymen, the bards, the old men of the
tribe are superseded in the valuation of the Compensation by the
delegates of the bishop or of the local lord. The fine becomes more and
more important: the compensation to the wronged one less and less; the
share of the community in the fine comes to naught; the whole payment is
pocketed by the chief. The Old Testament provides these delegates with
the necessary traditional example of judgment. Thus we see the modern
judge evolving out of chosen jurymen at the same rate as the feudal
system evolves out of the village community. The idea of Punishment is
born, and soon drives away every other conception, especially under the
action of the Church, which taking example by its Hebrew predecessors
wants to reign by terror. An injury to a priest is no longer an injury
to a man, it is an injury to the divinity, and no punishment is severe
enough to chastise such a crime. The cruelty of the judgment increases
as time goes on, and the secular power imitates the clerical power.
In the 10th and 11th centuries the medieval city appears. Revolution
after revolution, city after city expel the judge of the bishop, of the
lord, of the duke. The cities make their Conjuration. At first the
citizens swear to drop all contests arising from the lex talionis (law
of retaliation) and, if new contests arise, never to appeal to external
powers, but to settle everything among themselves. The Guild, the
Parish, the Town Community are the different degrees of juridiction.
Bailies, chosen by the members of the guild, the street, the parish or
the town, decide the compensation to be granted to the wronged party. In
specially important cases, the guild, the street, the parish or the
town, convoked to a general meeting, pronounce the sentence. Besides,
Arbitration in all the stages between individuals, between guilds,
between parishes and cities takes a very large extension.
But the organization lasts only a few centuries. Christianity and a
revival of the study of Roman law find their way into the ideas of the
people at large. The priest harps incessantly upon the anger and wrath
of God. His favorite argument—still the same in our day—is that eternal
punishment will be inflicted for trespass against the law of the Church;
applying the words of the Scripture concerning those possessed by evil
spirits, the Church discerns a demon in every wrongdoer; she invents all
sorts of tortures to drive the demon from the body, and then burns him
that he may not relapse. From the very beginning, Priest and Lord act
together; the priest is often himself a Lord; the Pope is a King;
therefore the one who has broken the law of civil society is by and by
treated as the one who has trespassed against the Church. The clerical
and the civil powers go hand in hand, the clerical only slightly ahead,
their laws and refined tortures increasing steadily in ferocity. The
Pope, himself supreme umpire, gathers round himself lawyers, experts in
Roman and feudal laws. Common sense, knowledge of usage and customs,
study of human nature, are left more and more in the background; they
are said to foster bad passions, to be an invention of the devil.
“Precedent” ranks as law, and, the older a judgment is, the more
important, the more respectable it appears to be. “Precedents” are
therefore sought for from imperial Rome and from Hebrew judges.
Arbitration disappears, slowly before the rising power of the bishop,
the lord, the king, the pope. As the alliance of religious and civil
powers becomes closer, amicable settlements of disputes are forbidden;
compensation to the wronged party becomes a thing of the past; --
vengeance in the name of a Christian God or of the Roman State being the
main point. At the same time, the atrocious character of the penalties
inflicted is such that it is almost impossible to read the description
of the judicial scenes of that period.
The fundamental ideas of Justice, essential to every society, have thus
totally changed between the 11th and 16th centuries. In our article on
The State and its Historic Role we have endeavored to explain how the
State took possession of the free cities; let it be sufficient for our
present purpose to remark that, when the evolution took place which
brought the cities under the sway of the State, the communities had
already forsaken, even in ideal, the principles of arbitration and
compensation which were the essence of popular justice in the 11th
century. When the State laid its hand upon the cities the old conception
had entirely gone. Christianity and Roman law had already made States
out of free cities. The next step was simply this, that the State
established its empire upon the now enslaved cities.
Certainly, it would be interesting to study how economic changes
happening during that length of time (five centuries), how distant
commerce, exportation, creation of banks and of commercial loans, how
wars, colonization, and capitalist production take the place of communal
production, consumption and commerce—to study how all these factors
influenced the leading ideas during the same period and helped to that
change in the conception of Justice. Some splendid researches are here
and there to be found in the works of the historians of the free cities.
A few original researches upon the influence of Christian and Roman
ideas also exist (though such studies are of a much more difficult
nature and always heterodox). But it would be wrong to trace everything
back to economics; it would be just the same sort of mistake as if,
studying botany, we should say that the amount of heat received by a
plant determined its life and growth, forgetting humidity, light and
other important factors.
This historical resume, short as it is, shows nevertheless how the State
and the evolution of Vengeance, called Justice, are related
institutions—derived from one another, supporting one another, being
historically one.
But a moment of quiet thought is sufficient to understand how both
institutions hold logically together, how both have a common origin in
the same idea: Authority looking after the security of society and
exercising vengeance upon those who break established rules or laws. If
you admit the existence of judges, as specially selected members of
society entrusted with the care of applying codified traditions, it does
not matter by whom chosen or elected, -- you have an embryo of State
round which other powers that may be will gather. On the other hand, if
you admit the centralized structure called State, one of its functions
will be to administer justice. Hence the judges.
But can we not have judges elected by the people? Let us see where it
leads us to. First it must be said that the idea of laws directly made
by the people has never been seriously entertained; their drafting must
always be left to some more enlightened man (hero, Ubermensch
["superman"]). Then, besides the judge and the lawmaker (legislator),
other men will be needed to explain such laws, to interpret older ones,
to study their connections and leading ideas: law universities with
staff of teachers and students, acting like a drag on society with all
the weight of their inherited traditions and their hairsplitting about
the letter of the law. But that is nothing compared with the auxiliaries
needed by the judge: on one side the gendarme, the police, the
prostitute, the spy, the agent provocateur; on the other, the jailer,
the executioner and all the sequel of turpitude which necessarily
accompanies them. Finally, you must supply some supervising body to keep
all that army of functionaries going. You must not forget to provide
money for their maintenance and so on. In short, there is not one
function of the State today whose services can be dispensed with if we
want to keep the judge—be he elected by the people or not.
But what about the Code? The Code, all codes, represents a gathering of
traditions, of formulas borrowed from old conceptions absolutely
repugnant to all Socialist ideas of today; survivals of our slavish
past, slavish in action, slavish in speech, slavish in thought. It is of
no consequence that some of the leading moral ideas may be in accordance
with our own; the moment a punishment is decreed for the non-fulfillment
of a good action we will have nothing to do with it. A Code is the past
stereotyped and put across the path of human progress.
Every legal punishment is legalized vengeance, vengeance made
obligatory, and we must ask ourselves what is the use of vengeance? Does
it help maintain social customs? Does it ever prevent the small
minorities of breakers of good customs from doing so? Never. On the
contrary, to proclaim the duties of vengeance is simply helping the
existence of anti-social customs. Think of the amount of filthy
perversity thrown into society by the police institution, far more
dangerous to society than any act committed by criminals. Think of the
“well-intentioned lies” of magistrates meant to get the truth out of the
criminals. Think of all that happens round us and you will understand
why Anarchists have no hesitation in declaring that Punishment is worse
than Crime. And every one studying those questions and going to the root
will come to the same conclusion, and will try to find some other means
of protection society against the evil-doers.
Everyone will see that arbitration, arbiters being chosen by the
contending parties, will be sufficient in the very great majority of
cases to quell arising disputes. Everyone will admit that the policy of
noninterference now so greatly favored is a bad habit acquired since the
State found it convenient to assume the duty of keeping order. Active
intervention of friends, neighbors, passersby would prevent a large
proportion of conflicts. Let it be everybody’s duty to assist the weak,
to interfere between fighting people, and police will not be required at
all.
The student cannot help being struck by the fact that for a couple of
centuries there has been a parallel development going on: on one side
legal punishment and vengeance have been less and less bloody, not to
say milder, torture has been abolished, penalty of death has been
limited to fewer cases and in some countries totally abolished; on the
other hand anti-social acts have diminished. There is far greater
security in our everyday life than in that of our forefathers. Many
factors have helped towards softening of manners, but softening of
punishment is certainly one of them. Should we not continue in the same
line; or should we suppose that a Socialist or Communist society would
be inferior in that respect or a capitalistic government?
We can do without judges in society, as well as we can do without bosses
in production.
So-called Justice is a survival from a past serfdom based, for the
interest of the privileged classes, on the Roman law and on the ideas of
divine Vengeance.
In the history of society, organization of Vengeance under the name of
Justice is coterminous with the State; they imply one another; they were
born together, flourished together and are doomed to perish together.
Coming from an age of serfdom it helps to maintain serfdom in present
society; through its police, prisons and the like, it is an open sore,
throwing out a constant stream of purulence into society, a far greater
evil than the one it is supposed to fight against.
Any society founded on better economics than ours will certainly come
also to the conclusion that it is unwise to keep any punitive
institution.
The way of doing without it will be found in voluntary arbitration, in
greater effectual solidarity, in the powerful educative means which a
society will have that does not leave to the policeman the care of its
public morality.